legalfandomcom-20200213-history
Law of Canada
Constitution The constitution of Canada is a mixture of British parliamentary custom and the terms of the Canada Act, 1867 (formerly the British North America Act, a statute of the United Kingdom), which incorporates the Canadian Charter of Rights and Freedoms. The Canada Act describes a federal system, with a central government and several provinces. In 1867, there were four provinces, and since 1949 there have been ten. In addition, there are three territories under federal jurisdiction with limited self-government. Sections 91 and 92 of the Canada Act outline the subject matter jurisdictions of the federal government and the various provincial governments. For example, criminal law is solely within the jurisdiction of the federal government, while property and civil law are solely within the jurisdiction of the provincial governments. Canada has a bicameral parliamentary legislature, with a House of Commons, which is elected, and a Senate, which is appointed. The head of state is the current sovereign of the United Kingdom, although the sovereign is always represented by the Governor-General. The Governor-General's office is entirely ceremonial and is required to follow the advice of the executive branch. The executive branch, the Prime Minister and Cabinet, is part of the legislative branch and must have the confidence of the House of Commons at all times. If the Prime Minister loses the confidence of the House, either by a vote of non-confidence or the defeat of a taxation or spending bill, the Prime Minister is required to resign and either ask the Governor-General to call a general election or to ask one of the opposition parties to attempt to form a government. Provinces generally have a unicameral parliamentary legislature, with the Lieutenant-Governor standing in the place of the sovereign and the Premier acting as head of the executive branch. Premiers must also have the confidence of their legislatures. Judiciary The highest court in Canada is the Supreme Court of Canada, which is the highest appellate court in the country and has jurisdiction over all federal and provincial matters. It's nine members are appointed by the Prime Minister and serve for life or until the age of 75. By custom, three judges come from Ontario, three from Quebec, one from the Maritime provinces, and two from the Western provinces. There is a Federal Court, located in Ottawa with branches throughout major cities in Canada, that deals solely with matters under federal jurisdiction, such as immigration and intellectual property. There is also a Federal Court of Appeal, which is the court of first appeal for the Federal Court. Appeals from the Federal Court of Appeal are to the Supreme Court. Under the terms of s. 92 of the Canada Act, the provinces maintain their own courts, which have jurisdiction over both criminal and civil matters. These are divided into superior courts, which hear serious criminal cases and civil cases where the amount at issue is above a limit, and inferior courts which hear summary offence criminal cases, small claims cases, and family law cases that do not involve division of property. Superior court judges are all appointed by the federal Prime Minister, although they are paid by the provincial government. Inferior court judges are appointed by the Premiers. Passing laws Both the federal and provincial legislatures have similar processes for passing legislation, which require a bill to be "read" three times to the legislature and a final vote passing the bill. For federal legislation, the bill must also be read and passed by the Senate. In both cases, the sovereign's representative formally signs the bill. It is then published in a Gazette and has the force of law. Civil law Private disputes in most provinces are decided under the common law borrowed from England, combined with statutory law. However, although the common law is based on English common law and modern English decisions are still influential in Canada, the Supreme Court of Canada has final say over common law decisions in Canada. However, common law is not in effect in the province of Quebec, which uses the Quebec Civil Code - a codified set of laws to settle private disputes which is based on the Napoleonic Code. Criminal Law Canada has a unified criminal statute, the Criminal Code of Canada, which applies in all provinces and territories. However, under the terms of the Canada Act, provinces are responsible for prosecuting criminal acts and maintaining criminal courts. As such, there are no federal prosecutors or federal criminal courts in Canada. Prosecutors are civil servants hired by the provincial government and reporting to the Attorney-General. They are referred to as Crown Attorneys. There is no system of public defenders in Canada. Instead, indigent defendants are usually supported by Legal Aid funded by the provinces, which pays a fixed hourly rate to private defence attorneys. Legal profession Lawyers in Canada must hold a Bachelor of Laws or Juris Doctor degree. Canadian law schools generally offer a law degree focussing on the Quebec Civil Code (Quebec) or the common law (Other provinces). The University of Ottawa and McGill University offer both types of law and a joint degree program for both. In addition, they must have served an articling clerkship for a period of 10-12 months and pass a course of examinations in order to be admitted to a Law Society. Some Law Societies have special requirements; for example Newfoundland & Labrador requires members of its Law Society to have studied Admiralty. Law Societies are administered by each province and territory but are self-regulating and self-financing. Ontario now licenses paralegals as well as lawyers and allows paralegals to represent clients in the inferior courts of the province. Quebec has two legal professions, Advocats, who represent clients in court proceedings, and Notaries, who deal with land transactions. Resources Canadian Legal Information Institute http://www.canlii.org Category:Canada Category:Countries